The Voting Rights Act, which passed in 1965, stands as one of the great monuments tocivil rights in American history. The Fifteenth Amendment, ratified in 1870,purported to give Americans the right to vote regardless of “race, color, orprevious condition of servitude,” but it was not until a century later, with thepassage of the act, that the right was enforced, and Southern blacks were finallyfree to cast a ballot. Over the years, an ideologically diverse group of SupremeCourt Justices has reviewed and approved the constitutionality of the act manytimes. But, in a case to be argued before the Court this spring, the currentconservative majority has a chance to undo this signal achievement of Americandemocracy.

Section 5 of the act, which is at issue in Northwest Austin Municipal UtilityDistrict No. 1 v. Holder, is what gave the legislation teeth. That provision singlesout by name those states and counties with especially notorious histories ofdiscriminating against African-Americans, through such mechanisms as literacy tests,character tests, and poll taxes. The law not only eradicated these obstacles; itwent a crucial step further. It decreed that if the “covered jurisdictions” wantedto change their voting procedures in any way—from redrawing district lines in thestate legislature to moving the location of a solitary polling place—they first hadto obtain permission from the Justice Department. (Congress reauthorized the VotingRights Act in 1970, 1975, 1982, and 2006, and in the process expanded its coverageto include several Western states with histories of discriminating against Hispanicand Native American voters.) The process of review by the Justice Department, whichis known as “preclearance,” has been remarkably effective.

And that is the point of the lawsuit. Some of the jurisdictions covered by Section 5now want to be released from this form of federal receivership. As the lower courtin the case put it, the plaintiffs argue that the preclearance provision should befound unconstitutional “because Congress ‘irrationally and incongruously’ chose tocontinue imposing ‘disproportionate’ burdens and a ‘badge of shame’ on coveredjurisdictions on the basis of an ‘ancient formula’ and ‘conditions that existedthirty or more years ago but have long since been remedied.’ ” What is the proof?The plaintiffs stated it in the first line of their brief: “The America that haselected Barack Obama as its first African-American president is far different thanwhen Section Five was first enacted in 1965.”

To paraphrase the President: Yes it is. The formula for determining whichjurisdictions are covered is largely based on election results from 1964, a timethat is nearly a half century, and a world, away from our own. Almost all ofVirginia and much of North Carolina are covered jurisdictions under Section 5, andObama won both states. Moreover, the Justice Department has for some time beenapproving ninety-nine per cent of the electoral changes submitted by coveredjurisdictions. As Representative Lynn Westmoreland, a Georgia Republican, put it inarguing against the most recent reauthorization of the law, “Congress is declaringfrom on high that states with voting problems forty years ago can simply never beforgiven—that Georgians must eternally wear the scarlet letter because of theactions of their grandparents and great-grandparents. We have repented and we havereformed, and now, as Fannie Lou Hamer famously said, ‘I’m sick and tired of beingsick and tired.’ ” There is something unseemly, to say the least, aboutconservatives who have opposed the Voting Rights Act now toasting its success,particularly as that success is incomplete.

Barack Obama won the Presidency, but voting patterns in the Deep South suggest thatrace remains a major factor in American political life. As part of a brief in theNorthwest Austin case, Professor Nathaniel Persily, of Columbia Law School, showshow poorly Obama did with white Democrats in those states. According to Persily’sanalysis of the 2008 returns, Obama received forty-seven per cent of the white votein states that are not covered under Section 5 but won only twenty-six per cent ofthe white vote in covered states. “Barack Obama actually did worse among whites thanJohn Kerry in several of the covered jurisdictions, despite the nationwideDemocratic swing,” Persily writes. Race seems like the best explanation for thisdifference. The fact that other African-American candidates have failed so often andfor so long with white voters in the South indicates that no one should be in ahurry to declare the United States a “post-racial” society.

What recent electoral history shows is that voting requires broader, not narrower,protection. In many parts of the country, the voting rights of poor and minoritycitizens are treated with not so benign neglect. In the 2000 election,African-American voters in Florida suffered disproportionately from that state’sshoddy practices, such as inadequately maintained registration lists and inferiortechnology; in 2004, many minority voters in Ohio endured long lines waiting forbalky, and too few, voting machines. Across the nation, laws that remove thefranchise from those with criminal convictions hit minorities especially hard. Moredirectly, the Republican Party has made an institutional commitment to eradicate thenonexistent problem of voter fraud by imposing identification requirements that areobviously aimed at limiting the numbers of voters from demographic groups that favorDemocrats. But neither Florida nor Ohio is a covered jurisdiction under Section 5,and the act is not written to address new techniques of suppression. Three yearsago, Congress ducked the problem by simply reauthorizing the old law and giving it afatuous new name, the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King VotingRights Act Reauthorization and Amendments Act of 2006. For the legislators, this washeroism by association, not heroism in fact.

Viewing Obama’s election as an opportunity to tidy up the nation’s historicalaccounts is tempting but ultimately wrong. Yet even if the Court’s conservativessucceed in taking out Section 5 they cannot reverse the course of a changed andchanging nation. In the Court’s great affirmative-action case of 2003, in which itupheld racial preference in admissions at the University of Michigan Law School,Justice Sandra Day O’Connor’s opinion suggested that by 2028 such measures should nolonger be necessary. The Voting Rights Act expires in 2031. Thanks in part to theelection of Barack Obama, it is now plausible to believe that the day will come whenthe act, too, will no longer be necessary.